Opinion
A131557
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BRITTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR267654)
Defendant was sentenced to 12 years in prison following his conviction of multiple burglary counts and other related crimes. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We remand to the trial court to correct a clerical error, but otherwise affirm. 1. Marsden Motion
The trial court held a hearing before trial, pursuant to People v. Marsden (1970) 2 Cal.3d 118, after defendant expressed dissatisfaction with his trial attorney. The court did not abuse its discretion when it denied defendant's Marsden motion, because nothing in the record demonstrates that counsel was providing inadequate representation, or that counsel and defendant had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. (People v. Dickey (2005) 35 Cal.4th 884, 917.) 2. Convictions Following Jury Trial
A review of the evidence presented at defendant's jury trial supports defendant's convictions of the following counts, as charged in the second amended consolidated information:
The trial court granted the People's motion to consolidate four cases against defendant, then granted a second motion to add an additional case. The court did not abuse its discretion when it granted the motions, because the charges against defendant involved the same class of crimes, and there is no showing of prejudice resulting from the consolidations. (Pen. Code, § 954 (all further statutory references are to the Penal Code); People v. Miller (1990) 50 Cal.3d 954, 986-987.)
First degree residential burglary (§ 459—count 1): On the afternoon of June 12, 2009, defendant broke into a Vacaville home through a first-story window; various items were later reported missing.
First degree residential burglary (count 2): On the morning of June 16, 2009, defendant broke into a Fairfield home using a ladder to enter through a second-story window; a diamond ring and a handgun were later reported missing.
Defendant was charged with grand theft firearm (§ 487, subd. (d)(2)—count 3) in connection with the June 16 break-in; however, the jury found defendant not guilty on this count.
Felony receiving stolen property (§ 496, subd. (a)—count 4): In the early morning hours of June 18, 2009, defendant's car was searched after a valid traffic stop in Vacaville. The search revealed three stolen credit cards. After the arresting officer informed defendant of his rights to silence and to an attorney (Miranda v. Arizona (1966) 384 U.S. 436), and defendant validly waived those rights, defendant said that he received the credit cards from a friend; however, the cards in fact belonged to someone who did not know defendant, and whose purse had been stolen.
Before trial, defendant filed a motion to suppress evidence seized from the car (§ 1538.5), and the trial court held a hearing on the motion. The arresting officer testified that he stopped defendant after he observed him roll through a stop sign and make an improper left-hand turn, in violation of the Vehicle Code. The officer asked to see defendant's driver's license and asked defendant (who appeared nervous and evasive) routine questions, including whether he was on probation. Defendant stated, and the officer confirmed through a records check, that defendant was on probation and subject to search and seizure conditions. The trial court properly denied the motion to suppress. (People v. Brown (1998) 62 Cal.App.4th 493, 496-497 [reasonableness of asking about probation status during valid traffic stop].) The trial court also properly denied a motion to suppress evidence seized after a search of defendant's home pursuant to a valid search warrant, which accurately stated that defendant was on probation and subject to search and seizure conditions.
First degree residential burglary (count 5): At some point between the evening of July 21 and the early morning of July 22, 2009, defendant broke into another Fairfield home while its occupants were away on vacation; a computer tower and jewelry were later reported missing.
Felony identity theft, attempted first degree residential burglary, attempted second degree burglary of a vehicle (§§ 530.5, subd. (a), 459, 664—counts 6-8): On August 6, 2009, defendant went to a Fairfield fast food restaurant and used an automated teller machine (ATM) card belonging to a man who left his wallet unattended while he worked on his Vacaville home. The transaction at the restaurant was captured on video surveillance. The next day, defendant returned to the same Vacaville home where the card was taken and tried to enter the home, as well as a car belonging to one of the people who lived at the home.
Felony identity theft (count 10): On August 8, 2009, defendant used an ATM card, which had been taken that same day from the purse of a Vacaville woman, to make a purchase at a gas station/convenience store in Fairfield. 3. Court trial on enhancement
Defendant was charged with first degree residential burglary (count 9) in connection with the taking of the ATM card, which was left in the victim's purse in her garage. The charge was amended to second degree burglary on defendant's motion because the victim did not testify as to whether the garage was physically attached to her home; the jury found defendant not guilty on this count. Defendant also was charged with second degree burglary of a vehicle (§ 459—count 11), second degree robbery (§ 211— count 12), and assault with a deadly weapon (§ 245, subd. (a)(1)—count 13), in connection with the taking of a woman's purse from her car on August 13, 2009, in Vacaville. Count 11 was dismissed on defendant's motion after the evidence at trial revealed that the victim's car was unlocked. The jury could not reach a verdict on counts 12 and 13, and the trial court declared a mistrial as to those two counts. The counts were dismissed as part of a plea bargain, whereby defendant pleaded no contest to an added count 14, grand theft person (§ 487, subd. (c)), after being advised of his constitutional rights, and knowingly waiving those rights, and after he stipulated that there was a factual basis for the plea. Defendant waived his right to appeal his conviction on this count.
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Following a bifurcated court trial, the trial court found true an allegation that defendant was out on bail when he committed his crimes in July and August 2009 (§ 12022.1), a finding that is supported by substantial evidence. Defendant was advised of his right to a jury trial on the enhancement before knowingly waiving that right. 4. Sentence
The trial court found defendant to be ineligible for probation, and sentenced him to the midterm of four years on count 1, plus two years for the on-bail enhancement, with the following consecutive terms: one third the midterm (16 months) on counts 2 and 5, and one third the midterm (eight months) on counts 4, 6, 7, 10, and 14, for a total prison term of 12 years. The court also imposed a concurrent one-year term on count 8.
There are no meritorious issues to be argued on appeal. Defendant was represented by counsel throughout the proceedings, substantial evidence supports defendant's convictions, and no error appears in the instructions to the jury, or in the sentencing proceedings.
However, in reviewing the record, we discovered an unraised clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 186-188.) Defendant's abstract of judgment reflects a conviction on count 8 for "[a]ttempted 1st degree burg[lary]." However, the charging document and the verdict form make clear that defendant was charged with, and convicted of, attempted second degree burglary (of a vehicle). The abstract of judgment shall be modified to reflect the conviction for attempted second degree burglary. The trial court is directed to prepare an amended abstract of judgment, and a certified copy of the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation.
The judgment is affirmed, subject to the correction in the preceding paragraph.
Sepulveda, J. We concur: Reardon, Acting P.J. Rivera, J.